US v. Ira Thorpe


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00407-WO-1 Copies to all parties and the district court/agency. [1000033263].. [16-4577]

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Appeal: 16-4577 Doc: 22 Filed: 03/01/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4577 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. IRA LEE THORPE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00407-WO-1) Submitted: February 9, 2017 Decided: March 1, 2017 Before TRAXLER, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4577 Doc: 22 Filed: 03/01/2017 Pg: 2 of 6 PER CURIAM: Ira Lee Thorpe pled guilty, pursuant to a written plea agreement, to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ (2012). The district court sentenced Thorpe to 24 months and 1 day of imprisonment, and he now appeals. 922(g)(1), 924(a)(2) Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning unreasonable effective whether because right of the Thorpe’s district allocution.” sentence court Thorpe is procedurally denied has Thorpe filed a “an pro se supplemental brief contending that his conviction violates both the Second Amendment as applied to him and due process. We affirm. Counsel allocution” Thorpe argues was during that violated allocution Thorpe’s when the and then answers when imposing sentence. “effective district right court penalized to questioned Thorpe for his Because Thorpe did not raise this objection in the district court, we review for plain error. See United 2007). States v. Muhammad, 478 F.3d 247, 249 (4th Cir. To establish plain error, Thorpe must demonstrate that (1) the district court committed an error; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” 2 Puckett v. United Appeal: 16-4577 Doc: 22 States, 556 Filed: 03/01/2017 U.S. 129, 135 Pg: 3 of 6 (2009) (internal quotation marks omitted). “Before imposing sentence, the court must . . . address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Crim. P. 32(i)(4)(A)(ii). Fed. R. A court may interrupt a defendant’s allocution to ask questions so long as there is no indication that the court is attempting to terminate the allocution and the defendant factors. is given ample opportunity to speak to mitigating See United States v. Covington, 681 F.3d 908, 910 (7th Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d Cir. 1997) (holding that defendant was denied opportunity for “meaningful” allocution). Furthermore, a court may increase a defendant’s sentence based on comments made during allocution if the comments are relevant to the 18 U.S.C. § 3553(a) (2012) analysis. See United States v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23, 30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35. Although the district court often interrupted Thorpe’s allocution to question him and referenced Thorpe’s answers in setting the downward variance sentence, we discern no error. The district responses court could be properly viewed noted as that minimizing some his of Thorpe’s acceptance responsibility and others were of questionable veracity. 3 of We Appeal: 16-4577 Doc: 22 conclude Filed: 03/01/2017 that credibility the of district Thorpe’s Pg: 4 of 6 court comments permissibly during assessed allocution the and appropriately considered those statements in fashioning Thorpe’s sentence under § 3553(a). Thorpe also argues that his conviction violates the Second Amendment as applied to him because his felony drug convictions are over 20 years old and he does not have a history of violent conduct. plea. Thorpe’s contention is likely waived by his guilty See United States v. Fitzgerald, 820 F.3d 107, 110 (4th Cir. 2016) (recognizing that “when a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea” (alterations and internal quotation marks omitted)); United States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment challenge to § 922(g) was not jurisdictional claim); United States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same). Even assuming Thorpe’s claim survives conclude that the claim lacks merit. the possibility of a successful his guilty plea, we Although we have left open as-applied challenge to § 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012), given Thorpe’s criminal history, he “law-abiding responsible citizen requirement.” cannot meet the United States v. Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation marks omitted). 4 Appeal: 16-4577 Doc: 22 Filed: 03/01/2017 Pg: 5 of 6 Lastly, Thorpe avers that his conviction violates his “due process reliance interests.” When Thorpe pled guilty in North Carolina state court to the felony drug offenses that served as the predicates for the instant conviction, state law prohibited Thorpe from possessing firearms for five years after his release from state custody. Before threshold, the North restoration of rights (1995), permanently to Thorpe Carolina General statute, ban reached N.C. Assembly Gen. convicted the amended Stat. felons five-year § from the 14-415.1 possessing certain firearms. Like Thorpe’s Second Amendment claim, his due process claim was likely waived when he pled guilty. at 110. See Fitzgerald, 820 F.3d Notwithstanding, we conclude that Thorpe’s argument fails on the merits. Because Thorpe’s right to possess firearms was his never restored, predicates under § (2012). Furthermore, state 922(g)(1). court See Thorpe convictions 18 cites U.S.C. no are § authority proper 921(a)(20) for the proposition that a felon retains a due process interest in the right to Amendment. bear arms under either the Second or Fourteenth See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct. App. 2012) (“No federal or State case has held that a convicted felon enjoys Fourteenth a liberty Amendment.”). interest For process claim fails. 5 to these bear arms reasons, under the Thorpe’s due Appeal: 16-4577 In Doc: 22 Filed: 03/01/2017 accordance with Pg: 6 of 6 Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Thorpe, in writing, of the right to petition the Supreme Court of the United States for further review. If Thorpe requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Thorpe. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6

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